Copyright:Artwork

O-oh, she’s taking a photo of some artwork. Does she have permission from the artwork’s copyright holder to use that photo? Or does she even need it? Either way, I like her gloves.

“Copyright protection subsists … in original works of authorship fixed in any tangible medium of expression … [including] pictorial, graphic, and sculptural works.”— 17 USC, §102(a)(5)

Including Statues, Paintings, Murals, or Other Items with Copyright in Your Photos

Entrance fees

“Most places that charge entrance fees have restrictions (which may include fees & approval on usage) or prohibit filming and photography on their properties for commercial purposes.”— iStockphotos, Legal Requirements.

DISCLAIMER: THIS IS NOT LEGAL ADVICE. I AM NOT A LAWYER. DO NOT DEPEND ON THIS.

“Any artwork — main focus or not — for which you are not the artist (creator) cannot appear in an image at iStock unless a property release from the artist (not the current owner) is included. Artwork located on public properties are not exempt from this rule.”— iStockphoto

A photo that you take has a copyright, which is owned by you. But if the subject of your photo is artwork, then that artwork may have a copyright, which would be owned by someone else. In that case, before you can upload the photo to a microstock agency or otherwise use it commercially, you need to get permission from the other copyright owner.

Contents

Obtaining permission from the other copyright owner is difficult. Who is the owner? Artwork rarely states the copyright owner; there is no central database of owners; and the ownership can change over time. And even if you do find the owner, they may demand a payment from you, or deny you permission. Then again, permission may not even be needed. Or you may choose to risk it and ignore the subject entirely.

Oh gosh, this is all getting rather complex. Let’s learn about artwork.

What Is Artwork?

In our application, we’ll consider artwork to be anything that is applicable to U.S. copyright law. Thus, artwork is something even minimally creative and original that is fixed in a medium.

Examples of protected artwork include:

Paintings and works of fine art

Statues and sculptures

Murals

Photographs, including photographs of other artwork

Advertisements

Maps, illustrations, graphic art, drawings

Cartoon strips, cartoon characters, stuffed animals

Posters and stills from movies, TV shows, computer games and theater shows

Text

Logos, designs, uniforms

Architectural works including designs, plans, drawings, and the building itself

Artwork Copyright

In all forms of creative artwork, the artist is automatically given, at the time of creation, a copyright. The artist, as the copyright holder, has a legal monopoly and is the only person who can make copies of the artwork. If you, as a photographer, want to take a photo of or including that artwork, you have to consider the underlying artwork’s copyright.

Four Situations

Depending upon the artwork and your use of the photo, there are four situations you can find yourself in. These are:

No Copyright. Some works are not covered by copyright law. For example, facts, U.S. laws, ideas, and concepts. Unfortunately, not much artwork falls into this category.

Fair Use. The artwork has copyright but your use of the photo is excluded under the law as “fair use.” Unfortunately, this applies mainly to private use and editorial use, not commercial use. So this generally doesn’t help us sell photos online. See fair use.

Valid Copyright and Commercial Use. Oh.

Old Paintings

These are generally in the public domain and are free to photograph and distribute. However, a museum may prevent you from taking a photograph in the first place under the terms of private entry. And posters of old paintings may be covered by copyright if there is additional design work included.

In the U.S., you can use someone else’s photo of an old painting, since there’s no creativity added by the photographer (see Bridgeman Art Library v. Corel Corp.). However, U.K. copyright law may protect such a photo since “sweat of the brow” counts to copyright.

Separability Test

This lamp is functional and creative.

“The design of a useful article … shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates such pictorial, graphic or sculptural features that can be identified separately from, and are capable of existing independently from, the utilitarian aspects of the article.”— U.S. Copyright Law, Definition of Pictorial, Graphic or Sculptural work, 17 U.S.C. § 101.

Copyright law applies to art but not facts; to the decorative parts but not the unavoidable parts. Many works combine form and function — they look nice and they do something — so each “useful article” must first undergo a “separability test” to creative portion.

A “useful article” is an object that has an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. …

Copyright does not protect the mechanical or utilitarian aspects of such works of craftsmanship. Copyright may, however, protect any pictorial, graphic, or sculptural authorship that can be identified separately from the utilitarian aspects of an object.

— U.S. Copyright Office

Statues

Statues

Only statues dating older than 75 years of age (with exception to private ownership) are acceptable as part of an illustration. Sculptures, figurines, installations, modern art any object in a museum, any object in an art gallery including public sculpture, some architecture, and advertisements are likely protected and should be accompanied by a property release for use in royalty-free stock illustrations.

Money

Dance Steps on Broadway by Jack Mackie

Shows

“Commercial performances including plays, operas, ballet, theater, etc. are protected as the intellectual property of the creators and require a property release for use in royalty-free stock.”— iStockphoto

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“Most places that charge entrance fees have restrictions (which may include fees & approval on usage) or prohibit filming and photography on their properties for commercial purposes.”— iStockphotos, Legal Requirements.

“Only statues dating older than 75 years of age (with exception to private ownership) are acceptable as part of an illustration. Sculptures, figurines, installations, modern art any object in a museum, any object in an art gallery including public sculpture, some architecture, and advertisements are likely protected and should be accompanied by a property release for use in royalty-free stock illustrations.”— iStockphoto

“Any artwork — main focus or not — for which you are not the artist (creator) cannot appear in an image at iStock unless a property release from the artist (not the current owner) is included. Artwork located on public properties are not exempt from this rule.”— iStockphotos, Legal Requirements.

“Submissions must NOT contain any copyrighted material including paintings, other copyrighted photos, copyrighted logos, or any other art/advertisements/sculptures/exhibits or audio which are copyrighted. If submitted material contains any of these or other types of copyrighted content, you must either submit releases from the copyright owners or you must mark the images as editorial.”— Shutterstock, Submitter Guidelines.

“Even if a painting (or drawing or photograph) has been sold to a collector or a museum, in general, the artist or his heirs retain control of the original image for 70 years after the artist’s death. Think of a novel. You may own a book, but you don’t own the writer’s words; they remain the intellectual property of the author for a time. So while MoMA owns the actual canvas of ‘Les Demoiselles,’ the family of Picasso, who died in 1973, still owns the image. And under existing law, the estate will continue to own the copyright until 2043. If someone wants to reproduce the painting — on a Web site, a calendar, a T-shirt, or in a film — it is the estate that must give its permission, not the museum.”— Patricia Cohen, New York Times, April 24, 2012.

Comments

Reply by G Smith

July 13, 2016

Hi, I painted a picture of a crowd scene and the people I put in it were people I had taken pictures of and were actually there at a state park. All the images are pretty small or from the back or side view and painted so not exact replicas of the actual people. Some may be recognizable by the other people because they were in/ costumes and you could identify people that way. Do I need permission from the people in the crowd sceme to sell my painting for profit

Reply by Andrew Hudson, PhotoSecrets

September 2, 2016

You are probably OK.

There are several reasons why this probably would not run afoul of a privacy law:

• Since the picture is painted, the people are likely not identifiable to a reasonable observer.

• The people are a minor part of the picture.

• The people are portrayed in a truthful manner (not offensive or private).

• The people were in a public place, doing something intended to be seen by the public.